IACtHR to Hear First Case on Discrimination Based on Sexual Orientation

On September 17, 2010, the Inter-American Commission on Human Rights (IACHR) submitted the unprecedented case of Chilean judge Karen Atala to the Inter-American Court of Human Rights (“Inter-American Court”). In her petition, Atala alleges discrimination based on sexual orientation in the custody case of her children. The Chilean Supreme Court granted permanent custody to the children’s father in 2004, following a complaint he made after Atala moved in with her same-sex partner. He alleged that exposure to Atala’s lifestyle caused the social, familial, and educational deterioration of their children. In granting the children’s father custody, the Chilean Supreme Court said that it based its decision on the best interest of the children. This is the first case of discrimination based on sexual orientation that the Inter-American Court will hear. A favorable result for Atala will address equal protection under the law for lesbian, gay, bisexual, and transgender (LGBT) individuals and the right of non-traditional families.

In its Admissibility Report, the IACHR found that Atala had claims under the American Convention on Human Rights (ACHR) because the Chilean State (“State”) considered her sexual orientation in the custody proceedings. The IACHR found that Atala’s rights were violated under Article 24 of the American Convention on Human Rights (ACHR), equal protection under the law; Article 11(2), right to privacy; and Article 17(1), the rights of the family. The IACHR also acknowledged the potential violation of the rights of Atala’s children under Articles 19 and 17(4) because the Chilean Supreme Court did not consider the children’s desire to stay with Atala. The IACHR referred the case to the Inter-American Court after it concluded that the State was responsible for violations of the ACHR, and had not complied with its recommendations for legislative and public policy reform on discrimination based on sexual orientation.

Chile defended its Supreme Court’s interpretation of the best interest of the child before the IACHR, which included removing the children from a living situation that could contribute to “a risk to [the children’s’] development given the current climate of Chilean society.” The State further argued that it did not discriminate against Atala based on sexual orientation, because its decision was not based on her relationship with her same-sex partner. Rather, its decision was based on the effect of her same-sex cohabitation on her children.

Several civil society organizations submitted amicus curiae briefs in the proceedings before the IACHR contesting the Chilean Supreme Court’s interpretation of the best interests of the child. The New York City Bar Association’s amicus brief argued that the Court’s decision goes against the best interests of the children, because it “reinforce[s] derogatory stereotypes and place[s] a judicial seal of approval on the very homophobic prejudice that creates and fosters a hostile environment in the first instance.” The New York Bar’s amicus brief also cited cases in Argentina, Costa Rica and Brazil where domestic courts have protected the custody rights of gay and transgender parents and condemned discrimination based on sexual orientation in custody cases.

Chile’s domestic legal system is divided on the idea that homosexual parents “deteriorate” children who cohabitate with them. The Chilean State is defending a decision by its Supreme Court that is contrary to the findings of Chile’s own lower courts. In the Chilean Supreme Court itself, the decision was contentious, with a three to two division. A decision by the Inter-American Court for Atala has the potential for impactful change within Chile. In response to a 2001 decision by the Inter-American Court finding Chile in violation of the ACHR, Chile rewrote part of its Constitution. The Inter-American Court’s power to assign reparations could achieve similar legislative change.

Macarena Saez, a lawyer with Chilean legal organization Libertades Públicas A.G., represented Atala in front of the IACHR. She says that this case has already achieved something great for the LGBT community. “What makes history is what the Commission decides,” she said, “and the Commission has said that sexual orientation is not grounds for discrimination.”